USA Law and Practice Contributed by: Courtney Scobie and Jack Edwards, Ajamie LLP
ability of arbitration agreements, subject to certain statutory exceptions and contract defences. • Settlement conferences – courts schedule settle- ment conferences to encourage parties to resolve their disputes before trial. These conferences are presided over by a magistrate judge or another neutral and they allow the parties to discuss their cases and explore potential settlements. Overall, ADR is a valued and integral component of the legal system in the USA. It allows parties to tailor dispute resolution processes to their specific needs and preferences, promotes efficiency, and reduces the burden on the court system. Additionally, it can lead to more creative and mutually satisfactory solutions than traditional litigation. 12.2 ADR Within the Legal System In the legal system of the USA, the promotion of ADR is a well-established practice, and ADR mechanisms are actively encouraged. In general, ADR is voluntary – although many courts require it as part of the standard scheduling order issued with cases. 12.3 ADR Institutions In the USA, institutions offering and promoting ADR are well-organised and play a significant role in the legal landscape. These institutions provide resources, training, and services related to various ADR methods, ensuring their effectiveness and accessibility. Organi- sations such as the American Arbitration Associa- tion (AAA) and the Judicial Arbitration and Mediation Services (JAMS) are widely used by parties and have well-established sets of rules and procedures. There are many other private ADR practitioners that can be used to resolve disputes.
contract principles, a court has limited authority to set aside an arbitral award. The USA is a signatory to the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the “New York Convention”). Under the New York Convention, US courts are required to rec- ognise and enforce foreign arbitral awards, subject to limited exceptions. The USA is also a signatory to the Inter-American Convention on International Com- mercial Arbitration (the “Panama Convention”). This convention governs the recognition and enforcement of arbitral awards within the Americas. Arbitral awards can be confirmed and enforced in either federal or state court. Even though the FAA and international conventions favour recognising and enforcing arbitral awards, there are limited grounds upon which an award may be challenged. These grounds include fraud, corruption, procedural irregu- larities, the arbitrator exceeding their authority, or if enforcing an arbitral award violates public policy. 13.2 Subject Matters Not Referred to Arbitration There are certain subject matters that may not be referred to arbitration, or for which arbitration may be subject to limitations or restrictions, as follows. • Certain employment claims – although many employment disputes are arbitrable, some employ- ment claims may be subject to restrictions, includ- ing claims related to wage-and-hour violations, workplace discrimination, sexual assault or harass- ment, or wrongful termination. • Certain regulatory matters – arbitration may not be available for certain regulatory disputes, including those related to environmental regulations, zoning and land use, or public safety issues. • Patent validity and trademark registration – patent validity and trade mark disputes are generally not arbitrable because they involve questions of federal law and require specialised courts. • Family law and child custody – family law matters (such as divorce, child custody, and child support) are typically not arbitrable. The public policy inter- est in ensuring the welfare of children and resolving
13. Arbitration 13.1 Laws Regarding the Conduct of Arbitration
The FAA is the primary federal law on arbitration. It embodies public policy favouring arbitration. This pol- icy seeks to promote finality and efficiency in arbitra- tion while allowing for limited judicial review. Under the FAA, if an arbitration agreement is valid under basic
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